Fight Over Betty|Boop Gets Fierce

LOS ANGELES (CN) – Aided by two prominent law firms, the family of Betty Boop creator Max Fleischer filed meritless trademark lawsuits to scare off competitors, a Nevada company claims in court. A.V.E.L.A. sued Fleischer Studios, the Arent Fox law firm, and Manatt Phillips & Phelps on Nov. 13 in Superior Court, alleging malicious prosecution and interference with prospective business advantage. Max Fleischer created Betty Boop in the 1930s, and sold Paramount Pictures the rights to the character in 1941. After Fleischer died in 1972, his family started Fleischer Studios and tried to repurchase rights to Betty Boop. Since 1989, AVELA has acquired and restored a number of publicity movie posters featuring Betty Boop that were created in the 1930s, and registered its own copyrighted works, while making clear that its works are based on materials that have been previously published, the complaint states. AVELA recently began licensing third parties to produce and distribute the restored Betty Boop vintage posters, but does not license rights to the name “Betty Boop” or any other imagery of the character other than how it is depicted in the poster artwork, according to the complaint. Fleischer Studios, which licenses the Betty Boop image for dolls, toys and other products, sued AVELA for copyright and trademark infringement in 2006. The 9 th Circuit ruled in February 2011 that Fleischer Studios had not proved that it held a valid trademark in the Betty Boop image mark. It sent the case back to U.S. District Court to determine whether Fleischer Studios might have a valid trademark in the Betty Boop word mark. On Nov. 14, 2012, U.S. District Judge Audrey Collins found that AVELA’s use of the Betty Boop word mark was a fair use. Collins determined that the word mark Betty Boop was an aesthetically functional use and not source-identifying trademark use. AVELA now claims that Fleischer Studios (FSI), along with Los Angeles-based law firms Arent Fox and Manatt Phillips, filed numerous unsupportable lawsuits – including the one against AVELA – to intimidate businesses and retailers who were validly selling Betty Boop merchandise. “FSI abuses the legal system by indiscriminately filing lawsuits to see what will eventually stick. It is essentially a continuous, sustained, and aggressive fishing expedition, the purpose of which is not to protect any alleged trademark, but rather to scare off competitors and their clients by threat of lawsuits and actual lawsuits. Manatt and Arent Fox are aware of and help advance this improper use of the legal system,” the complaint states. AVELA claims that Fleischer Studios and its attorneys had no reasonable belief that their claims were valid. It claims that the lawsuit against AVELA was filed to harass the company and its clients, part of an attempt to improperly monopolize the use of anything related to Betty Boop. Fleischer sent “hundreds, if not thousands, of cease and desist letters to competitors,” the complaint states, a “perverse practice” of using the court system “to threaten its competitors into submission.” “FSI’s heavy handed and litigious behavior has the effect of exhorting money from its competitors, who are conducting business lawfully. FSI, Manatt and Arent Fox forced AVELA to spend years in litigation at significant cost to defend a claim of trademark infringement which had no likelihood of success and was brought in an attempt to try to bleed Avela dry,” AVELA states. Though the “overwhelming majority” of lawsuits initiated by Fleischer “ended in crushing defeats,” including the one against AVELA, Fleischer and the law firms continue to threaten legal action, AVELA says. “With legal defeats in the U.S., defendant FSI shifted its attention toward interfering with AVELA’s domestic and international business relations. With this goal in mind, defendant FSI sent threatening letters to AVELA’s clients, licensees and potential licensees, in which they mislead readers as to FSI’s copyright and trademark rights,” according to the lawsuit. “Defendant FSI did not stop at sending misleading letters. Rather, defendant initiated additional lawsuits, throughout the world, based on the already litigated issues of copyright and trademark infringement of the Betty Boop character rights. These suits were initiated internationally despite all of AVELA’s contracts being signed in the United States,” the complaint states. AVELA says it received notice from Italy that it was to be joined as a party in a Betty Boop trademark infringement lawsuit, and has been dragged into litigation in Brazil. FSI and Hearst Holdings also filed an action for copyright infringement against AVELA before the High Court of Justice in the United Kingdom, the complaint states. AVELA seeks punitive damages. It is represented by Gregory Goodheart.